Roberts v. Sessions , 709 F. App'x 68 ( 2017 )

15-3960
Roberts v. Sessions
BIA
Straus, IJ
A038 996 686
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 28th day of September, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PIERRE N. LEVAL,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 PAUL SYLVESTER ROBERTS,
14 Petitioner,
15
16 v. 15-3960
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Cory Forman, Cohen Forman Barone,
24 LLP, New York, N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Mary
28 Jane Candaux, Assistant Director;
29 Kurt B. Larson, Senior Litigation
30 Counsel, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 D.C.
12 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review is
5 DENIED.
6 Petitioner Paul Sylvester Roberts, a native and citizen of
7 Jamaica, seeks review of a November 10, 2015, decision of the
8 BIA denying his motion to remand and affirming an October 29,
9 2013, decision of an immigration judge (“IJ”) denying his motion
10 for a continuance to pursue post-conviction relief in state
11 court. In re Paul Sylvester Roberts, No. A038 996 686 (B.I.A.
12 Nov. 10, 2015), aff’g A038 996 686 (Immig. Ct. N.Y. City Oct.
13 29, 2013). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed the
16 IJ’s decision as supplemented by the BIA. See Yan Chen v.
17 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 We review the agency’s denial of a continuance “under a
19 highly deferential standard of abuse of discretion.” Morgan
20 v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). An IJ “may grant
21 a motion for continuance for good cause shown,” 8 C.F.R.
22 § 1003.29, and only “abuse[s] his discretion in denying a
2
1 continuance if (1) [his] decision rests on an error of law (such
2 as the application of the wrong legal principle) or a clearly
3 erroneous factual finding or (2) [his] decision—though not
4 necessarily the product of a legal error or a clearly erroneous
5 factual finding—cannot be located within the range of
6 permissible decisions,” Morgan, 445 F.3d at 551-52 (internal
7 quotation marks omitted). We generally lack jurisdiction to
8 review a final order of removal against an alien, such as
9 Roberts, who is removable for having been convicted of a
10 controlled substance offense; however, we have jurisdiction to
11 consider constitutional claims and questions of law. 8 U.S.C.
12 §§ 1252(a)(2)(C), (D), 1227(a)(2)(B).
13 Roberts has failed to demonstrate legal or constitutional
14 error in the agency’s continuance denial. The agency properly
15 denied Roberts’s motion because he had “ample time” to
16 collaterally attack his 2009 conviction, any possible vacatur
17 of the conviction was speculative, and his conviction remained
18 final for immigration purposes. See Elbahja v. Keisler, 505
19 F.3d 125, 129 (2d Cir. 2007) (holding that agency did not abuse
20 its discretion in declining to grant a continuance sought to
21 pursue relief that is “speculative at best” (internal quotation
3
1 marks omitted)); In re Ponce de Leon, 21 I. & N. Dec. 154, 157
2 (B.I.A. 1996) (noting that pendency of a post-conviction motion
3 or other collateral attack on a criminal conviction does not
4 negate the finality of that conviction for immigration
5 purposes). Therefore, the agency’s continuance denial was not
6 a product of legal or constitutional error and falls “within
7 the range of permissible decisions.” See Morgan, 445 F.3d at
8 551-52; Elbahja, 505 F.3d at 129; In re Ponce de Leon, 21 I.
9 & N. Dec. at 157.
10 Roberts argues that the BIA erred by misconstruing his
11 state court motion as based on a claim of ineffective assistance
12 under Padilla v. Kentucky, 559 U.S. 356, 374 (2010), rather than
13 on an ineffective assistance claim based on affirmative
14 misadvice. See, e.g., Kovacs v. United States, 744 F.3d 44,
15 53-54 (2d Cir. 2014) (distinguishing Padilla claim from
16 ineffective assistance claim based on affirmative misadvice
17 about immigration consequences). His argument is misplaced
18 for two reasons: first, Roberts very clearly and repeatedly
19 characterized his state court motion for post-conviction relief
20 as a “Padilla motion” in his brief to the BIA and did not attach
21 a copy of the motion; and, second, Roberts did not identify any
4
1 other basis for his motion before the IJ and had not even filed
2 his state court motion until appealing from the IJ’s decision.
3 The BIA ultimately affirmed the IJ’s continuance denial because
4 any prospective post-conviction relief was speculative and
5 Roberts’s conviction remained final for immigration purposes.
6 Therefore, even if we were to conclude that the BIA erred in
7 construing Roberts’s state court motion as based on a Padilla
8 claim, remand on this basis would be futile. See Hua Lin v.
9 U.S. Dep’t of Justice, 453 F.3d 99, 106-07 (2d Cir. 2006).
10 Lastly, the Government is correct that Roberts does not
11 specifically challenge the BIA’s denial of his motion to remand.
12 See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)
13 (“Issues not sufficiently argued in the briefs are considered
14 waived and normally will not be addressed on appeal.”). Even
15 if Roberts had not waived review, the BIA did not err in
16 construing Roberts’s submission of new evidence on appeal as
17 a motion to remand. See Li Yong Cao v. U.S. Dep’t of Justice,
18 421 F.3d 149, 156 (2d Cir. 2005). Nor did the BIA commit
19 constitutional or legal error by denying the motion because the
20 evidence of Roberts’s pending collateral attack did not change
21 the validity of his conviction for immigration purposes. See
5
1 id.; In re Ponce de Leon, 21 I. & N. Dec. at 157.
2 For the foregoing reasons, the petition for review is
3 DENIED. As we have completed our review, any stay of removal
4 that the Court previously granted in this petition is VACATED,
5 and any pending motion for a stay of removal in this petition
6 is DISMISSED as moot. Any pending request for oral argument
7 in this petition is DENIED in accordance with Federal Rule of
8 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
9 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
6